916 F. Supp. 2d 1284
S.D. Fla.2012Background
- Magistrate Judge McAliley denied Campero USA Corp.'s motion for reconsideration of a prior order requiring production of 19 emails found not to be privileged.
- Defendants ADS Foodservice LLC and Aaron Spencer moved to compel production from Campero, alleging certain emails were privileged.
- Campero argued the emails were protected by attorney-client and/or work product privileges and sought in-camera review.
- The court had previously directed Campero to substantiate privilege claims with a detailed privilege log and supporting evidence.
- At the November 7, 2012 hearing, the court overruled Campero's privilege objections as to 19 emails and ordered production; Campero sought reconsideration.
- The court denied reconsideration, reaffirming that a privilege log and factual/legal support are required, and that in-camera review is inappropriate absent proper showing of burdened claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether reconsideration is proper based on new evidence or error | Plaintiff argues Meyer declaration shows after-the-fact evidence of legal advice; requests in-camera review | Defendants contend evidence was available earlier and not new; no error shown | Denied; no new evidence or clear error established |
| Whether Florida law governs privilege analysis here | Plaintiff asserts Florida privilege law applies due to state-law relevance of claims | Defendants argue federal/state choice-of-law analysis required; burden remains on privilege | Denied; no basis to apply Florida law for this federal matter |
| Whether the court should have conducted in-camera review of emails | Plaintiff contends in-camera review mandatory under Florida law | Court requires detailed, factual support before in-camera review; not warranted here | Denied; in-camera review not required given lack of adequate privilege proof |
| Whether Campero failed to meet burden of proving privilege for each email | Campero claims self-evident privilege from attorney-client communications | Insufficient evidence for elements of privilege; no declarations supporting each email | Denied; burden not met as to remaining 19 emails |
Key Cases Cited
- In re Grand Jury Subpoenas, 318 F.3d 379 (2d Cir. 2003) (privilege burden and elements required for invocation)
- United States v. Construction Prods., Research, Inc., 73 F.3d 464 (2d Cir. 1996) (burden on privilege claim; essential elements must be proven)
- Erie R.R. Co. v. Tompkins, 304 U.S. 64 (U.S. 1938) (choice of law rules in privilege analysis)
- Mays v. U.S. Postal Serv., 122 F.3d 43 (11th Cir. 1997) (tardy submission of evidence not a basis for reconsideration)